If you are charged with partner or family member assault (PFMA) in Montana, you have the right to have a jury decide the case, even when the charge is a misdemeanor. A misdemeanor jury has six members, a felony jury has twelve, and the verdict must be unanimous. A trial to the judge alone, called a bench trial, happens only when both sides consent. This page is part of our Montana Domestic Violence Guide.
Where the Right Comes From
Two sections of the Montana Constitution's Declaration of Rights are involved. Article II, section 24 gives the accused in all criminal prosecutions the right to "a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed." Article II, section 26 says: "The right of trial by jury is secured to all and shall remain inviolate."
Neither section is limited to felonies. The criminal procedure code carries the right into the lower courts by stating that the parties in a misdemeanor case are entitled to a jury of six qualified persons (MCA § 46-17-201(1)).
Jury Size by Court
| Type of case | Jurors | Fewer by agreement? | MCA |
|---|---|---|---|
| Misdemeanor PFMA in Municipal or Justice Court | 6 | May agree to fewer than six at any time before the verdict | § 46-17-201(1) |
| Felony in District Court | 12 | May agree in writing to fewer, with the court's approval | § 46-16-110(1) and (2) |
| New trial in District Court on appeal from a justice or city court that is not a court of record | 6 | Selected in the same manner as for other criminal cases | § 46-17-311(1) |
Which court you are in depends on the charge and where the incident is alleged to have happened. See the PFMA court process.
The Verdict Must Be Unanimous
Article II, section 26 ends with this sentence: "In all criminal actions, the verdict shall be unanimous." All six jurors in a misdemeanor case, or all twelve in a felony case, must agree before there is a verdict of guilty or not guilty. The State carries the burden of proving each element of the offense beyond a reasonable doubt. What those elements are for PFMA is covered in what is PFMA.
Waiving a Jury: It Takes Both Sides
The Constitution allows cases to be tried without a jury "by consent of the parties expressed in such manner as the law may provide" (art. II, § 26). The statutes then provide the manner:
- In a misdemeanor case, "upon consent of the parties, a trial by jury may be waived" (MCA § 46-17-201(2)).
- In District Court, a jury may be waived "upon written consent of the parties" (MCA § 46-16-110(3)).
The word is "parties," plural. The State is a party, so a defendant who would prefer a bench trial cannot insist on one over the prosecutor's objection. When a jury is waived, questions of law and fact are both decided by the court (MCA § 46-16-103(2)).
Losing the Jury Without Meaning To
The same constitutional sentence permits trial without a jury "upon default of appearance." Lower courts commonly set hearings before a jury trial to confirm that the case is going forward, and each court has its own practice about what happens if a defendant does not appear at one. The statutes we read do not set a single statewide procedure, so treat every notice from the court as mandatory unless your lawyer tells you otherwise.
The code is explicit about one situation. On an appeal to District Court, if the defendant fails to appear for a scheduled court date or meet a court deadline, the court may dismiss the appeal, and "the right to a jury trial is considered waived by the defendant" (MCA § 46-17-311(5)).
A guilty or nolo contendere plea also ends the matter without a trial. Before accepting one, the court must determine that you understand you are giving up the right to be tried by a jury (MCA § 46-12-210(1)(c) and (e)). See plea agreements in PFMA cases.
Choosing Between a Jury and a Judge
Because both sides must agree to a bench trial, the choice is not always yours to make. Where it is available, the considerations are specific to the case: whether the dispute is mainly about credibility or about a point of law, how the evidence rulings came out before trial, and how a defense such as self-defense is likely to be received. We do not think it is honest to say that one is generally better than the other.
One technical point connects this decision to firearms. Under federal law, a person is not treated as convicted of a misdemeanor crime of domestic violence unless, where there was a right to a jury trial, the case was tried by a jury or the person knowingly and intelligently waived that right, by guilty plea or otherwise (18 U.S.C. § 921(a)(33)(B)(i)(II)). Courts take jury waivers seriously for that reason among others. Whether a Montana PFMA meets the rest of the federal definition is a separate question. The Ninth Circuit held in United States v. DeFrance, 124 F.4th 814 (9th Cir. 2024), that the bodily injury subsection, MCA § 45-5-206(1)(a), does not: see does a Montana PFMA count under federal law. See the federal firearm ban.
If a trial ends in a conviction, the next questions are sentencing and appeal. See the sentencing hearing in a PFMA case and appealing a PFMA conviction.
This page explains Montana law in general as of the 2025 Montana Code Annotated. It is not legal advice about your specific case.